Citation Nr: 1101874
Decision Date: 01/18/11 Archive Date: 01/26/11
DOCKET NO. 07-30 257 ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Salt Lake City,
Utah
THE ISSUES
1. Entitlement to an initial compensable disability rating for
right patellofemoral pain syndrome.
2. Entitlement to an initial compensable disability rating for
left patellofemoral pain syndrome.
REPRESENTATION
Appellant represented by: Colorado Division of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. Neilson, Counsel
INTRODUCTION
The Veteran served on active duty from October 2, 2002, to August
22, 2005. He had 5 months and 19 days of prior active service.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a February 2006 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Seattle,
Washington, which awarded service connection for a right and left
patellofemoral pain syndrome and assigned noncompensable
disability ratings, effective August 23, 2005.
On November 29, 2010, the Veteran appeared and testified at a
hearing before the undersigned Veterans Law Judge sitting at the
RO. A transcript of that hearing is also of record.
FINDING OF FACT
The Veteran's right and left knee disabilities are manifested by
subjective and objective evidence of pain resulting in antalgic
gait and twitching, which impacts his functional ability.
CONCLUSIONS OF LAW
1. The criteria for a 10 percent disability rating for service-
connected right patellofemoral pain syndrome have been met since
August 23, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a
(2010).
2. The criteria for a 10 percent disability rating for service-
connected left patellofemoral pain syndrome have been met since
August 23, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a
(2010).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Background
In August 2005, the Veteran applied for VA disability
compensation, seeking service connection for bilateral iliotibial
band syndrome. He underwent a VA examination in September 2005,
during which he reported bilateral knee pain brought on by
running or walking more than one-half mile. He reported
occasional swelling when climbing stairs or riding his bicycle.
He further reported locking once every one to two months, and
giving way once every one to two months. On examination, a
normal gait was observed. There was no effusion, redness, point
tenderness, or instability. Pain on pressure was noted
bilaterally. Range-of-motion testing revealed right knee motion
from 0 to 138 degrees, and left knee motion from 0 to 135,
without pain. There was no additional limitation of motion with
repetitive testing. X-rays of the right and left knee were
negative, showing no fracture or significant arthritic changes.
In February 2006, the RO granted the Veteran service connection
for right and left patellofemoral pain syndrome. The RO assigned
noncompensable disability ratings under 38 C.F.R. § 4.71a,
Diagnostic Code (DC) 5099-5024.
The Veteran filed a notice of disagreement (NOD) with his
disability ratings, stating that he was experiencing a lot of
pain and difficulty with his knees. He stated that the weather
affected his knee pain. He also indicated that he had been seen
by an orthopedic surgeon at Fort Gordon, Georgia, while in
service. A statement of the case was issued and the Veteran
submitted a VA Form 9 (Appeal to Board of Veterans' Appeals) in
which he asserted his belief that he was entitled to a 10 percent
disability rating for each knee. He noted that he walked with a
limp and continued to experience pain in both knees.
The Veteran underwent another VA examination in January 2009.
During the examination, the Veteran stated that his pain level
varied due to the weather. During the summer, he had little or
no pain on account of the weather. His pain was, however,
aggravated by activities such as running. The Veteran also
reported that had been told previously that he had "pre-
arthritis." Examination of the knees revealed no deformities,
effusions, or erythemas. Nonfocal tenderness was present and
nonfocal guarding throughout the examination was observed. The
examiner noted an abnormal gait and stated that it was unclear
which of the Veteran's knees hurt more. It was also noted that
knee motion resulted in "twitching."
Passive range-of-motion testing on the right knee revealed that
the Veteran was able to achieve hyperextension of negative five
degrees (five degrees beyond zero). It was noted, however, that
he quickly corrected his range of motion and would not extend
beyond 20 degrees of residual flexion, stating that he felt pain
at that point. Flexion was to 120 degrees, with pain at 110
degrees. Repetitive testing showed a nonspecific jerking motion
of the knee as he moved from extension to flexion and back again.
Passive range-of-motion testing on the left knee revealed
extension to zero degrees. Again, it was noted that the Veteran
quickly corrected his range of motion to 15 degrees of extension.
Flexion to 130 degrees was recorded, with a notation of a
nonspecific, nonfocal, spastic-type jerking motion. The Veteran
reported pain at zero degrees of extension and 130 degrees of
flexion.
Valgus and varus testing showed no instability, although a
jerking motion was recorded. No pain with anterior drawer
testing was noted. Sensory examination was normal and no atrophy
was noted. The examiner found no additional limitation of
motion, except as noted above, on repetitive motion testing.
Pain, weakness, impaired endurance, fatigue, incoordination, and
flare-ups were not found to produce any additional limitation of
motion.
X-rays of the knee showed no evidence of fracture. The bony
alignment was anatomic and joint spaces were within normal
limits. No joint effusion was seen and the soft tissue
structures were unremarkable. A small radiolucent lesion over
the distal left femur was found.
In March 2009, the RO received additional service treatment
records (STRs), consisting of an October 2003 orthopedic
consultation report. It was noted that the Veteran was seen for
evaluation of bilateral knee pain. Examination revealed
tenderness bilaterally, but no limp or guarding of movement. A
bone scan was requested. A December 2003 STR shows that the
Veteran was seen for complaints of knee pain. Negative x-rays
and bone scan were noted.
In November 2009, the Veteran testified at a Board hearing. He
reported a prior diagnosis of "pre-arthritis" and stated that
his knee mobility was limited by pain. He estimated his pain to
begin at 90 degrees of flexion. He denied locking and reported
occasional giving way (two or three times a year).
II. Analysis
A. Disability Rating
Disability ratings are determined by the application of a
schedule of ratings, which is based on the average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §
4.1 (2010). "Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower rating
will be assigned." 38 C.F.R. § 4.7 (2010).
The veteran's entire history is reviewed when making disability
evaluations. See generally 38 C.F.R. § 4.1 (2010); Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). Where, as in the case here,
the question for consideration is the propriety of the initial
evaluation assigned, consideration of the medical evidence since
the effective date of the award of service connection and
consideration of the appropriateness of a staged rating are
required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Further, when an evaluation of a disability is based on
limitation of motion and/or arthritis, the Board must also
consider, in conjunction with the otherwise applicable diagnostic
code, any additional functional loss the veteran may have
sustained by virtue of other factors as described in 38 C.F.R. §§
4.40, 4.45, 4.59 (2010). See DeLuca v. Brown, 8 Vet. App. 202,
206 (1995). In that regard, the functional loss may be due to
absence of part, or all, of the necessary bones, joints and
muscles, or associated innervation, or other pathology and
evidenced by visible behavior of the claimant undertaking the
motion. Weakness is as important as limitation of motion, and a
part that becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. § 4.40. Further, pain on movement,
swelling, deformity or atrophy of disuse as well as instability
of station, disturbance of locomotion, interference with sitting,
standing and weight bearing are relevant considerations for
determination of joint disabilities. 38 C.F.R. § 4.45.
Moreover, painful, unstable, or malaligned joints, due to healed
injury, are entitled to at least the minimal compensable rating
for the joint. 38 C.F.R. § 4.59 (2010).
The Veteran's service-connected patellofemoral pain syndrome has
been evaluated as noncompensable (zero percent) for each knee
under DC 5099-5024. Hyphenated DCs are used when a rating under
one DC requires use of an additional DC to identify the basis for
the evaluation assigned. 38 C.F.R. § 4.27 (2010). When an
unlisted disease, injury, or residual condition is encountered,
requiring rating by analogy, the DC number will be "built-up" as
follows: the first two digits will be selected from that part of
the schedule most closely identifying the part, or system of the
body involved, in this case, the musculoskeletal system, and the
last two digits will be "99" for all unlisted conditions. Then,
the disability is rated by analogy under a DC to a closely
related disability that affects the same anatomical functions and
has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27
(2010). In this case, the RO has determined that the diagnostic
code most analogous to the Veteran's patellofemoral pain syndrome
DC 5024, which pertains to tenosynovitis, which in turn is to be
rated based on limitation of motion of affected part, as
arthritis. 38 C.F.R. § 4.71a, DC 5024.
Degenerative arthritis, established by x-ray findings, will be
rated on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved. 38
C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion
of the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor joints
affected by limitation of motion, to be combined, not added under
diagnostic code 5003. Id. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle spasm,
or satisfactory evidence of painful motion. Id. Painful motion
of a major joint or groups of minor joints caused by arthritis,
established by x-ray, is deemed to be limited motion and entitled
to the minimum 10 percent rating even though there is no actual
limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484
(1991).
Diagnostic codes 5250 and 5261 pertain to limitation of motion of
the knee. Under DC 5260, a noncompensable evaluation is assigned
where flexion is limited to 60 percent; a 10 percent evaluation
is assigned where flexion is limited to 45 degrees; a 20 percent
evaluation is assigned where flexion is limited to 30 degrees;
and a 30 percent evaluation is assigned where flexion is limited
to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a
noncompensable rating is warranted if extension is limited to 5
degrees; a 10 percent rating is warranted if extension is limited
to 10 degrees; a 20 percent rating is warranted if extension is
limited to 15 degrees; a 30 percent rating is warranted if
extension is limited to 20 degrees; a 40 percent rating is
warranted if extension is limited to 30 degrees; and a 50 percent
rating is warranted if extension is limited to 45 degrees. 38
C.F.R. § 4.71a, DC 5261.
In this regard, the Board notes that range-of-motion testing
conducted during the August 2005 examination revealed right knee
motion from 0 to 138 degrees and left knee motion from 0 to 135
degrees, each without pain. The January 2009 examination
revealed right knee flexion to 120 degrees, with pain at 110
degrees, and left knee flexion to 130 degrees. Accordingly,
because the objective evidence of record does not demonstrate
that the Veteran's right or left knee flexion was limited to at
least 60 degrees, the Board finds that compensable ratings for
the Veteran's service-connected right and left patellofemoral
pain syndrome are not warranted based on limitation of flexion.
See 38 C.F.R. § 4.71a, DC 5260.
As for limitation of extension, the August 2005 examination
report recorded the Veteran's extension to be to zero degrees,
bilaterally, without pain. On examination in January 2009, it
was recorded that the Veteran could extend his right knee to five
degrees past what is considered to be the full extension. See
38 C.F.R. § 4.71a, Plate II (2010) (Full range of motion of the
knee is from 0 to 140 degrees). His left knee extension was to
zero degrees, which also suggests that the Veteran's extension
was not inhibited. See id. In both instances, however, the
examiner noted that the Veteran quickly corrected his extension
to 20 and 15 degrees for his right and left knee, respectively.
Although extension limited to 15 and 20 degrees would warrant
compensable ratings, the Board finds that because the Veteran was
also observed to have extension to zero degrees and negative five
degrees for his left knee and right knee, respectively, which
represents a full range of extension, the evidence fails to
establish entitlement to compensable ratings based on limitation
of extension. In that regard, the Board also notes that during
his November 2010 hearing, the Veteran testified that even when
aggravated by weather, his ability to move his knees is not
limited. He indicated that pain began at about 90 degrees of
flexion.
Further, as the evidence fails to demonstrate that the Veteran's
range of knee motion is limited to a compensable degree (flexion
limited to 60 degrees or extension limited to five degrees), even
considering the subjective and objective evidence of painful
right and left knee motion, entitlement to 10 percent ratings
based on objective findings of limitation of motion are not
warranted. See 38 C.F.R. § 4.71a.
The Board has also considered whether the Veteran may be entitled
to a higher rating under the following DCs applicable to
disabilities of the knee: (1) DC 5256 which pertains to
disabilities involving ankylosis of the knee; (2) DC 5257 which
pertains to impairments of the knee manifested by instability or
subluxation; (3) DC 5258 which provides for a 20 percent
evaluation for dislocated semilunar cartilage "with frequent
episodes of 'locking,' pain, and effusion into the joint"; and
(4) DC 5262 which is used to evaluate impairment of the tibia and
fibula. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262 (2010).
There is no evidence of ankylosis of the right or left knee joint
or any impairment of the tibia or fibula to allow for application
of DCs 5256 or 5262. Further, there is no evidence of
instability or subluxation to allow for application of DC 5257.
The evidence of record also does not demonstrate any complaints
of dislocated cartilage. Although the Veteran did report
occasional locking, it was not frequent, and without evidence of
dislocation, an evaluation under DC 5258 is not supported.
Although the Veteran is not entitled compensable ratings under
the diagnostic criteria applicable to disabilities of the knee,
the Board is mindful of the fact that it must consider whether
the Veteran's functional ability is limited on account of pain.
See DeLuca, supra. Here, it is clear that the Veteran has pain
in both knees. On examination in September 2005, the Veteran
reported subjective complaints of pain brought on my weather and
activity. He reported occasional locking and giving way. The
examiner noted evidence of pain when pressure was applied to
either knee and when the Veteran actively and passively flexed or
extended his knee. On examination in January 2009, the Veteran
indicated that he experienced pain in both knees brought on by
changes in weather, running, walking more than one-half mile, and
climbing stairs. On range-of-motion testing, he corrected his
extension, presumably on account of pain. The examiner observed
an antalgic gait, guarded movement, and a twitching or jerking
motion of both knees.
Accordingly, taking into consideration the provisions of 38
C.F.R. §§ 4.40, 4.45, 4.59, the holding in Deluca, supra, the
subjective complaints of the Veteran, and the documented evidence
of painful motion, guarding, and twitching, the Board finds that
a 10 percent evaluation is warranted for each knee. This is
consistent with rating by analogy to arthritis, the criteria for
which allows for a 10 percent rating for each major joint
affected by a noncompensable limitation of motion. DC 5003. The
Board has considered the possible application of a higher rating,
but finds that one is not warranted on account of the fact that
the Veteran's activities of daily living are not limited, his
pain is not constant, and he does have relatively good range of
motion of both knees. See 38 C.F.R. § 4.7
The Board notes that the Veteran's symptoms have been relatively
consistent throughout the pendency of his claim. Therefore, the
Board finds that a staged rating is not warranted. See
Fenderson, supra. Thus, an initial 10 percent rating for each
knee is granted from the August 23, 2005, the effective date of
the award of service connection, and a higher rating is not
warranted for any period since August 23, 2005. 38 C.F.R. §§
4.40, 4.45, 4.59, 4.71s, DC 5099-5024.
In finding that evaluations greater than 10 percent are not
warranted, the Board has considered the doctrine of reasonable
doubt, but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits. The
Board is unable to identify a reasonable basis for granting a
rating in excess of 10 percent for the Veteran's right or left
patellofemoral pain syndrome. Gilbert v. Derwinski, 1 Vet. App.
49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §
3.102 (2009).
B. Notice and Assistance
The Veterans Claims Assistance Act of 2000 (VCAA), codified in
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp
2010)), and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2010), provides that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim. They also
require VA to notify the claimant and the claimant's
representative of any information, and any medical or lay
evidence, not previously provided to the Secretary that is
necessary to substantiate the claim. As part of the notice, VA
is to specifically inform the claimant and the claimant's
representative of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will attempt
to obtain on behalf of the claimant.
(The Board notes that 38 C.F.R. § 3.159 was revised, effective
May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The
amendments apply to applications for benefits pending before VA
on, or filed after, May 30, 2008. The amendments, among other
things, removed the notice provision requiring VA to request the
veteran to provide any evidence in the veteran's possession that
pertains to the claim. See 38 C.F.R. § 3.159(b)(1).)
The VCAA notice requirements apply to all five elements of a
service connection claim. These are: (1) veteran status; (2)
existence of a disability; (3) a connection between a veteran's
service and the disability; (4) degree of disability; and
(5) effective date of the disability. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
The RO received the Veteran's claim for service connection in
August 2005. The RO sent to him a letter notifying him of the
evidence required to substantiate his claim. The letter advised
the Veteran of the information already in VA's possession and the
evidence that VA would obtain on his behalf, as well as of the
evidence that he was responsible for providing to VA, to include
private medical evidence.
Although the letter did not include the general criteria for
assigning disability ratings and effective dates as required by
Dingess, supra, after the Veteran filed his NOD as to the
disability ratings assigned, the RO sent him a letter in June
2008 that described the evidence necessary to obtain higher
ratings. The Veteran has not disputed the contents of the VCAA
notice in this case. Given the facts of this case, the Board
finds that the Veteran had a meaningful opportunity to
participate in the development of his claim. Thus, the Board is
satisfied that the duty-to-notify requirements under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.
Regarding the duty to assist, the Board also finds that VA has
fulfilled its obligation to assist the Veteran. All available
evidence pertaining to the Veteran's claims has been obtained.
The evidence includes his STRs, VA examination reports, VA
hearing transcripts, and lay statements by the Veteran. The
Veteran also had a hearing in his case. The Board notes that
during the hearing the Veteran asserted that he had been
evaluated by an orthopedic in service. It appears that records
pertaining to that treatment have been associated with the claims
folder, as it contains an October 2003 orthopedic consolation
report received in March 2009.
Further, the Veteran was afforded VA examinations in September
2005 and January 2009. The examiners reviewed the claims folder
and conducted thorough examinations of the Veteran. The
examiners recorded the Veteran's subjective complaints and their
objective findings related to his disability. The Board finds
that the examination reports contain sufficient evidence by which
to evaluate the Veteran's service-connected disabilities
throughout the claim period. Thus, the Board has properly
assisted the Veteran by affording him an adequate VA examination.
ORDER
Entitlement to a disability rating of 10 percent from August 23,
2005, for right patellofemoral pain syndrome is granted, subject
to the laws and regulations governing the payment of monetary
benefits.
Entitlement to a disability rating of 10 percent from August 23,
2005, for left patellofemoral pain syndrome is granted, subject
to the laws and regulations governing the payment of monetary
benefits.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs